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Friday, February 02, 2007
Law - "New Vintage of Wine Litigation Is Fermenting"
"New Vintage of Wine Litigation Is Fermenting" is the heading of this long report in The National Law Journal, written by Amanda Bronstad. It begins:
A new crop of litigation is fermenting across the nation in a second round of challenges to state shipping laws that limit direct sales of wine to consumers.More from the story:New suits and amended complaints filed in the past year are attacking requirements that consumers must purchase wine in person, with the first court decisions recently issued in Maine and Kentucky. Wineries also are challenging legal shipping limits that are based on production volume.
In both types of cases, out-of-state wineries accuse the states of discriminating against them.
The recent litigation puts a new twist on the direct-shipping issues that prompted a recent U.S. Supreme Court ruling. In the ruling, the Supreme Court found that laws in New York and Michigan discriminated against out-of-state wineries by allowing only in-state wineries to ship directly to consumers. Granholm v. Heald, 544 U.S. 460 (2005). The ruling pitted the commerce clause against the 21st Amendment.
More rulings and cases are expected this year, with an anticipated circuit split on the two new issues surfacing in the laws, said Richard Van Duzer, a partner at San Francisco-based Farella Braun + Martel who specializes in wine litigation.
"Ultimately, this will be back before the Supreme Court, which will have to be more explicit about what it said and what it hasn't said," he said.
James Tanford, a professor at Indiana University School of Law who has brought 21 suits on behalf of wineries, said many of the states amended their laws "to give the appearance of an equal economic opportunity for out-of-state wineries but to impose so many regulatory burdens it wouldn't happen."_______Among the most common complaints are those involving volume caps and in-person purchasing requirements.
Tanford said that in-person purchasing requirements discriminate against out-of-state wineries because "95 percent of the wine is grown on the West Coast, and if you have to go there to make a face-to-face appearance it won't happen. It puts a barrier on sales that will exclude most out-of-state wineries. There is no conceivable justification for that." * * *
In Indiana, two out-of-state wineries and five Indiana residents are challenging portions of the state's law that were revised last year, including a requirement that initial purchases of wine be made in person. Baude v. Heath, No. 1:05-cv-00735 (S.D. Ind.).*
They said the new law "has exactly the same discriminatory effect as those condemned in Granholm," according to a motion for summary judgment filed on July 21.
In response, the state's defendants called the lawsuit "part of a national litigation campaign" against alcohol regulations in several states, according to cross-motions filed on Nov. 17.
Calls seeking comment to the Indiana Attorney General's Office were not returned.
*1:05-cv-00735-JDT-TAB
BAUDE et al v. HEATH
John Daniel Tinder, presiding
Tim A. Baker, referral
Date filed: 05/18/2005
Date of last update: 01/23/2007
Posted by Marcia Oddi on February 2, 2007 07:30 AM
Posted to General Law Related